Government Considers New Approach Over Net Neutrality

Dennis Faas's picture

A former presidential advisor has called for the US government to reclassify the legal status of the Internet. It follows concerns that the Federal Communications Commission (FCC) may not have the statutory authority to enforce "net neutrality" principles or to go ahead with proposed plans to expand Internet access.

The FCC has historically sought to uphold the idea of net neutrality. This is the principle that, with the exception of illegal material, all Internet traffic should be treated equally by carriers. This would mean, for example, that an Internet service provider couldn't charge higher fees for access to particular websites or services. Of course, the site itself is perfectly at liberty to charge for access.

Peer-to-Peer "Throttling" Sparks Dispute

This argument was tested in 2008 when the FCC censured Comcast after discovering it had been intentionally slowing down access for customers using peer-to-peer (P2P) filesharing, which the agency said discriminated against a particular type of Internet traffic. It was noted at the time that slowing down access for users who downloaded particularly large amounts of data would not breach net neutrality, it was simply acting over the method which caused the problem.

Last week an appeals court struck down that verdict. It did not rule on the merits of the case, nor determine whether Comcast's actions did break the rules. Instead, the verdict said that the FCC did not have the legal powers to enforce the rules as they had only been developed by the commission itself and were not specifically laid down in either a law passed by the Senate or covered by statutory powers given to the agency.

Ruling "Undermines" Authority

The FCC's general counsel explained that the ruling undermined the commission's legal approach to regulating the Internet industry. He said that some aspects of the FCC's national broadband plan, which will oversee spending of money allocated by the stimulus package passed by Congress last year, may need to be reviewed to be sure they fall within the commission's powers. (Source:

That did prompt some discussion as to whether Congress might have to vote for wider powers for the FCC or even detail specific rules which it could enforce.

Telecommunications Or Information?

Susan Crawford, a former presidential advisor and a current law professor, says that isn't necessary. She believes that the problem is a 2005 decision which re-classified Internet communications from a "telecommunications service" to an "information service". It is this change of status that appears to have taken net neutrality enforcement out of the reach of FCC powers.

Crawford believes the commission can simply re-classify Internet access as a telecommunications service just like the phone network or television. This would then give the FCC much greater powers to make and enforce rules, including those associated with net neutrality. (Source:

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